Covert Surveillance: When can the Employer lawfully undertake it?

In the recent unfair dismissal case of Kane v Bombardier Aerospace 239/16 IT, the Northern Ireland Tribunal found that the employer’s use of covert surveillance was lawful. In that case the EEF NI represented the employer throughout the proceedings and at the Hearing.

Facts of the Case

Bombardier had employed Mr. Kane for approximately 7 years. On 1st December 2014 Mr. Kane had a workplace accident. He was then absent from work from the accident until his dismissal for gross misconduct on 28 September 2016. During his absence he was regularly assessed by the Company’s Occupational Health Department. Mr Kane had previously brought a successful personal injury claim against his employer and it was believed that he would bring a further claim in respect of this accident.

Throughout his Occupational Health assessments, Mr. Kane presented himself as someone with significant restrictions. Approximately 7 months after the accident, Mr Kane was still presenting with difficulties such as: carrying his 1-year-old son; basic personal care such as putting on his socks and shoes and; painting.

The Company had concerns regarding his reports of limited medical progress and further concerns were raised about how the accident had happened. This led the Company to have suspicions that Mr. Kane was exaggerating his symptoms with a view to boosting compensation in a personal injury claim. In light of all the concerns, a Senior Manager within the Company authorised the use of covert surveillance to monitor Mr Kane in public areas where he could have no expectation of privacy.

Surveillance was obtained which showed him laying flagstones in the driveway at the front of his home without any apparent restriction or pain. Mr Kane accepted that it was him in the surveillance.

Following receipt of the surveillance, the Company sought the Occupational Health Consultant’s opinion. The Consultant had seen Mr. Kane a few days before and after the surveillance. The medical opinion was that the surveillance showed someone without any restriction at all.

Mr Kane was subsequently dismissed for gross misconduct on grounds that included an untruthful representation of his medical condition.

Tribunal Claim

Mr Kane claimed his dismissal was unfair and that the use of covert surveillance infringed Article 8 of the European Convention of Human Rights (ECHR) i.e. his right to privacy and private life. He alleged that reliance on the surveillance rendered the dismissal unfair.

Article 8 states that:

Everyone has the right to respect for his private and family life, [and] his home…

There shall be no interference by a public authority with the exercise of this right except as such as in accordance with the law and is necessary in a demonstrate society… for the prevention of…. Crime. [Or] for the protection of health

Tribunal Decision

The Tribunal found that his dismissal was fair. The Tribunal set out in detail the case law and their findings on the use of covert surveillance and that there was no infringement of Article 8. Amongst other matters they stated that Mr Kane had no expectation or a right to privacy when he was engaged in an activity in full view of the public. The Tribunal also referred to case law that stated that when someone is potentially engaged in a fraud they can have no reasonable expectation of privacy.

Importantly the Tribunal went on to say that if there had have been an infringement of Mr. Kane’s Article 8 rights, then this interference would have been proportionate. The grounds for so finding including:

There were genuine concerns that the employee was engaged in fraud;

The surveillance was limited to a short number of days over a short period;

Prior to sanctioning the use of the surveillance, a Senior Manager considered its use and as such it was not unlimited or intrusive surveillance.

This was a relatively rare for the Company to authorize such surveillance.

The Company was therefore entitled to protect its business interests by engaging in covert surveillance where there was potential fraudulent activity being carried out by an employee.

Commentary

This is a very welcome Decision for Employers who have genuine concerns regarding the legitimacy of an employee’s period of sickness absence and/or where they believe there is a risk to their business interests by an employee’s conduct. However, it is not a carte blanche approach for employers to engage in covert surveillance for whimsical reasons. Prior to engaging in covert surveillance Employers should conduct an impact assessment to consider, and demonstrate that they have considered, the appropriateness of using covert surveillance.

However, where there is a legitimate risk to the business or where the employee is suspected of wrongdoing a Company can lawfully consider protecting its business interest by using convert surveillance in an appropriate way.

We would urge any Organisation contemplating using covert surveillance to speak to a member of the Legal Team for further advice prior to authorizing its use.